Download AGREEMENT

AGREEMENT
If you are told on the facts of the problem that there has been an agreement then
just state there is one and move on.
Only explore if there is some uncertainty
OFFER
“a clear statement of the terms by which the person making the offer is prepared to be
bound’
A mere puff: a non-promissory statement which may be used as advertisement to
induce another to enter into contract. Exaggerated statements a reasonable wouldn’t
hold to be true
An invitation to treat: not an offer but an invitation to other parties to make an offer.
A person who responds to an invitation to treat is in fact making the offer which may
then be accepted or rejected, eg goods in catalogue, auctioneers request for bids,
announcements inviting tenders etc Grainger v Gough
Standing Offers:
Offers to provide goods or services when required. These offers are accepted each
time an order is placed. Can be revoked at any time prior to acceptance Great
Northern Railway Co v Witham; Colonial Ammunition Co v Reid
Communication:
An offer becomes effective once it is communicated to the offeree or his or her agent
Cole v Cottingham eg if a reward is offered but unaware of reward cannot claim later
when hearing of the reward R v Clarke
TERMINATION OF AN OFFER:
An offer may be terminated at any time before it has been accepted, but once an offer
has been accepted then it cannot be revoked Great Northern Railway Co v Witham
Revocation: the formal withdrawal of an offer by the offeror, can only occur prior to
acceptance.
 Revocation will only be effective once it is communicated to, and received
by, the offeree Byrne v Tienhoven
 Revocation by a reliable third party may be sufficient Dickingson v Dodds
 If consideration has been given to keep the offer open for a period of time
offer may be revoked until the expiration of that time Goldsborough Mort v
Quinn.
 If acceptance if the performance of an act then once that act has begun the
offer cannot be revoked Abbott v Lance
Rejection: Once an offer is rejected by an offeree it cannot later be accepted
 Where a person purports to accept an offer but introduces new terms the offer
is rejected and a new offer is made which can then be accepted or rejected by
the other party (counter offer) Hyde v Wrench unless the new condition is
minor or of a trivial nature Turner Kempson and Co Pty Ltd v Camm
 The rejection is effective once communicated to the offeror. If a party intends
to accept the offer but changes their mind they may be able to reject the offer
if it is prior to the communication of the acceptance
Lapse of Time: An offeror may stipulate their offer must be accepted within a period
of time, and of the offeree fails to accept the offer is said to lapse
 If there is no time prescribed, the offer may be accepted in a reasonable
amount of time Ramsgate Victoria Hotel v Montefiore
Conditional Offers: An offer may be made conditional on the happening of a certain
event. If a condition on which the offer is made is not fulfilled then the offer lapses
McCaul (Aust) Pty Ltd v Pitt Club Ltd
Death: If an offeror dies then it is still possible for the offeree to accept the ofer thus
binding the deceased’s estate. An offeree cannot accept an offer after hearing of the
death of the offeror Coultart v Clementson
If Offeree dies then the offer more than likely lapses Reynolds v Atherton assistant
ACCEPTANCE
Acceptance is the expression, either in words or conduct, of assent to the terms of the
offer. In a unilateral agreement the acceptance is taken as the first person who accepts
or performs the act Robinson v M’Ewan
Communication: An acceptance has no effect until it is communicated to the offeror
Byrne and Co v Leon Van Tienhoven and Co Acceptance must be communicated by
the offeree or their agent Dickinson v Dodds. Silence does not constitute an
acceptance Felthouse v Bently
Postal Acceptance Rule: Must be in comtemplation of parties that the post will be
used as the form of response. Acceptance is effective at the time of posting not at the
time of receiving Adams v Lindsell
Revocation: It is possible to revoke acceptance as long as the revocation is
communicated to the offeror before the acceptance is communicated Entores Ltd v
Miles Far East Corporation
CERTAINTY
If a contract is to vague or uses uncertain terms then the contract may be deemed void
Whitock v Brew. However the courts endeavour to make contracts valid where they
can Hilas and Co v Arcos Ltd
Meningless terms: A contract which contains meaningless term may be
unenforceable unless the contract could stand on it own Fitsgerald v Masters
WHERE A CONTRACT IS ‘SUBJECT TO’
Subject to finance
Subject to Formal Agreement
Where a contract is made ‘subject to contract’ there are three categories of
interpretation as set out in Masters v Cameron
1. Where the parties have reached finality in their negotiations and intend to be
bound immediately but propose to restate the terms in a more formalised
manner
2. Where parties have completely agreed but have made performance of one of
the terms conditional upon execution of a formal document
3. where the parties do not intend to be bound unless and until a formal
document is entered into
Only in the first and second categories will the parties be immediately bound by their
agreement whether the formal document comes into existence or not Masters v
Cameron
In the third case the terms of the agreement are not intended to be binding and
therefore are not
Go off the facts of the case to determine their intentions as evidenced by their actions.
Next explore whether or not the contract is enforceable eg if it is a contract for the
sale of land